Osborne v. State

• Citation: 806 P.2d 272
• Decision Date: 11 February 1991
• Docket Number: Nos. 90-66,s. 90-66
• Parties: Jerry OSBORNE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases). Jerry OSBORNE, a/k/a Jerre Osborne, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). to 90-68.
• Court: United States State Supreme Court of Wyoming

Page 272

806 P.2d 272

Jerry OSBORNE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).

Jerry OSBORNE, a/k/a Jerre Osborne, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 90-66 to 90-68.

Supreme Court of Wyoming.

Feb. 11, 1991.

Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, and Donald K. Slaughter, Legal Intern (argued) for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Charles A. Breer (argued); and Donald G. Moore, Legal Intern, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

CARDINE, Justice.

Jerry Osborne challenges her conviction for procuring and receiving money from prostitution. The conviction also resulted in revocation of her probation on two other charges. In this consolidated appeal, she challenges those revocations as well.

We affirm.

Appellant brings the following issues:

ISSUE I

Whether appellant's conviction and probation revocations should be reversed due to insufficiency of the evidence?

ISSUE II

Whether appellant's trial attorney had sufficient opportunity to discover the State's evidence?

ISSUE III

Whether appellant's conviction and probation revocations should be reversed due to ineffective assistance of counsel?

ISSUE IV

Whether the trial court erred by failing to dismiss for lack of a speedy trial?

Appellant Jerry Osborne ran a business in Casper known as the A-1 Escort Service. The business operation attracted customers through a newspaper advertisement listing a telephone number to call. The caller would reach an answering machine and hear a tape recorded message with appellant's voice requesting that the caller leave a number. Appellant would then return the call and arrange a meeting with a woman who would solicit an act of prostitution.

Appellant had five women working for her. Upon receiving a call, she would send one of them out to meet a customer. She instructed these "employees" how much they should charge and what precautions to take upon meeting a customer. These precautions included checking the customer for identification, checking in with her after completion of the services rendered, and collection of the money. The "employee" would then go to appellant's house and deliver to appellant her share of the proceeds. Charges ranged from $60 to $120. The "employee" retained $50 plus tips, and appellant kept the difference.

Appellant was charged with promoting prostitution under W.S. 6-4-103 on December 13, 1988. On December 27, 1988, she waived her right to a speedy preliminary hearing. On January 11, 1989, her preliminary hearing was held in Natrona County Court, and the case was bound over for trial in district court. A criminal information was filed on January 13, 1989, charging appellant with violation of W.S. 6-4-103(a) and conspiracy to violate W.S. 6-4-103(a), which provides "(a) A person commits a felony if he:

"(i) Knowingly or intentionally entices or compels another person to become a prostitute;

"(ii) Knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution;

"(iii) Having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; or

"(iv) Receives money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution."

Appellant's arraignment was scheduled for February 2, 1989, but was rescheduled due to inclement weather. At a February 16, 1989 arraignment, appellant pled not guilty. The trial, scheduled for May 15, 1989, was continued upon appellant's motion. On June 26, 1989, the State requested a setting for trial. The court scheduled a trial for October 10, 1989.

Prior to trial, the conspiracy charge was dismissed. On the day of the trial, appellant moved for dismissal due to lack of speedy trial. The court denied the motion, attributing part of the fault for the delay to the appellant.

Following a trial to the court, appellant was found guilty of violation of subsections (ii) and (iv) of W.S. 6-4-103(a), procuring a person for the purpose of prostitution and receiving money for prostitution. At the time of this conviction, appellant was on probation for an insufficient funds check charge to which she pled guilty in 1985 and for charges of fraud by check and misdemeanor larceny by bailee to which she pled guilty in 1987. Her probation was revoked, each revocation garnering appellant two to four years in prison to be served concurrently. For the prostitution conviction, appellant was given a sentence of 13 to 16 months in prison to be served consecutively to the revocation sentences. This sentence was suspended and replaced with a sentence of one year probation which included a six-month term at the Casper Community Alternatives program following her release from prison.

SUFFICIENCY OF THE EVIDENCE

When reviewing a challenge to a criminal conviction on the basis of sufficiency of the evidence, we examine all the evidence in a light most favorable to the State. Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989). We then draw all favorable, reasonable inferences from this evidence to determine whether any rational trier of fact could have found, beyond a reasonable doubt, the elements of the crime necessary for a conviction. Griffin v. State, 749 P.2d 246, 248 (Wyo.1988). We apply this same standard whether trial is to a jury or to the court as in this case. Tennant v. State, 776 P.2d 761, 763 (Wyo.1989).

The evidence at the trial included testimony from a Casper police officer and a former A-1 "employee," plus records from A-1 transactions and a telephone answering machine tape. The telephone answering machine tape captured appellant's voice describing A-1 services; and the records in appellant's handwriting documented the names of customers, the amount of money received and the split of the proceeds between her and her "employees." The testimony established appellant made arrangements for acts of prostitution in violation of subsection (ii) and received money from it in violation of subsection (iv). Even one of appellant's witnesses, Tina Meastas, whose testimony implicated herself instead of appellant as the proprietor of this business, admitted that appellant participated in numerous factions of the enterprise and received money from it.

Appellant directs attention to the case of Konopisos v. State, 26 Wyo. 350, 185 P. 355 (1919), for the proposition that a conviction for promoting prostitution cannot stand when the evidence consists solely of admissions by the defendant. Konopisos was convicted of running a house of ill fame based solely on the testimony of two men who stated that Konopisos maintained such an establishment. 185 P. at 356. We reversed because this evidence alone was insufficient to establish the corpus delicti,

                i.e., the existence of a "cat house" (as Justice Blume said, "whatever that may be," Boschetto v. Boschetto, 80 Wyo. 374, 343 P.2d 503, 505 (1959)) and women to staff it.  185 P. at 356.   The holding in Konopisos has no application here.  The evidence to convict appellant consists not of admissions by the defendant at all but of testimony concerning her activities plus physical evidence.  This type of evidence is similar to the type of evidence in Belondon v. City of Casper, 456 P.2d 238 (Wyo.1969), where the appellant challenged the sufficiency of the evidence for convictions of soliciting an act of prostitution and maintaining a house of prostitution.  In Belondon, the evidence included testimony that the appellant directed the activities of the prostitutes, controlled the premises, and had possession of marked money.  456 P.2d at 240.   Sufficient evidence was presented in this case for any rational finder of fact to find beyond a reasonable doubt the elements of the crime necessary to conclude that appellant violated W.S. 6-4-103(a)(ii) and (iv)
                

ACCESS TO THE STATE'S EVIDENCE

Appellant contends in her second issue that the prosecutor improperly denied her access to the State's evidence. W.R.Cr.P. 18 deals with discovery in criminal matters. It states in pertinent part:

"(a) Defendant's statement; report of examinations and tests; defendant's grand jury testimony.--Upon motion of a defendant, the court may order the attorney for the state to permit the defendant to inspect and copy or photograph any relevant:

"(1) Written or recorded statements or confessions made by the defendant or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney;

"(2) Results of reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and

"(3) Recorded testimony of a defendant before a grand jury.

"(b) Other books, papers, documents, tangible objects or places.--Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, upon a showing of the materiality to the preparation of his defense, and that the request is reasonable. Except as provided in subdivision (a)(2) this rule does not authorize the discovery or inspection of reports, memoranda or other internal governmental documents made by governmental agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state...